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Email Marketing Winners Show How It’s Done – Part 2 of 2

As managing director of the eec, DMA’s email marketing arm, I was delighted to announce  last week that we will be honoring two remarkable industry leadersZack Notes, Senior Analyst, UncommonGoods, will receive the Stefan Pollard Marketer of the Year Award; and our Email Marketer Thought Leader of the Year Award goes to Dennis Dayman, Chief Privacy Officer, Oracle | Eloqua.  This new award  recognizes an industry leader who has made a substantial positive impact on the email marketing community as a whole, and/or on individual client(s).

Both awards will be presented during a special celebratory luncheon honoring the award recipients at the Email Evolution Conference, which will be held January 22-24, in Miami, Florida.

In this two-part series, we bring you some questions and answers with both honorees – to gain further insight into their outstanding work.  Earlier, we brought you thoughts and insights from Zack Notes.  Today, we’ll hear from Dennis Dayman:

Q:  How do you promote and advance best-practices within your work – with consumers, and with other businesses?
  The use of best practices is about saving and keeping digital channels, like email, as open as possible, without allowing it to fall into the hands of criminals or under the control of government. I believe best practices can be advanced most effectively by taking down the walls between providers and consumers; between companies and their competitors.

I aim to approach best practices with a broader view and an emphasis on the masses, not on a single entity, like myself or the company I’m representing. When all of the companies and participants in an industry work as a team, the speed of sharing this necessary information improves greatly.  When promoting ideals, information, and best practices, I implore people to use the information to better their customers and the needs of their specific brand.

Our single platforms may be different in many ways, but best practices are designed to overcome these individual differences, allowing them to be both effective and influential, especially when our industry works together toward a common goal of safety and protection.

Q:  What are some of the best ways you have found to foster trust among businesses and consumers?
Fostering trust between businesses and consumers begins with the business granting choices and control to their consumers, especially concerning its products and services that are being used for data capture. This simple strategy allows businesses to start earning trust from their end-users.  Once consumers see repeated respect for their privacy, they are more likely to provide the needed information to the business.

When businesses keep a privacy-centric focus, and keep the needs of the end- user in mind, trust is immediately built upon. When businesses are as truthful and timely with information regarding the end-users’ information during negative situations such as in data loss, the consumers tend to continually trust the business.

Q:  How has the explosion of Big Data changed the way businesses do email marketing?
  Most of our current federal privacy laws predate the technologies that raise data privacy issues -- such as behavioral advertising, location-based services, social media, mobile apps, and mobile payments. The move of commerce and content to the Internet has led to new abilities to collect, collate, use, and sell data, and new opportunities to use that data for innovative marketing and other services. Technology truly has created a new data environment.

The social media and mobile channels have allowed people to push out more personal information than ever before - no matter their time or location. Data collection is, therefore, easier than ever before. Determining what data is and isn't useful, however, is more difficult.

I have joked that the simplest definition of "Big Data" is "If it doesn't fit in an Excel spreadsheet, then its Big Data.”  This is true for most people who wonder how to make the shift from a traditional approach of just a few small contact data points like email and phone numbers, to Big Data ones that now tell us all your Digital Body Language, like click and buying habits outside of the traditional email channel. Also, Big Data is what happened when the cost of storing information became less than the cost of making the decision to throw it away.

To be honest, I think the idea or confusion behind the term Big Data has caused problems in email marketing. People think there are a new set of ideals or processes in place to send out email marketing when in reality the oldest and simplistic processes of sending a relevant and targeted message still stands.

Big Data is still surrounded by a world of relevant marketing ideals and where we have access to modern marketing tools. We just have to decide what we really need to just send an email or connect socially without collecting to much information.

Q:  How do you work to strike a balance between responsible marketing practices and preventing overly restrictive legislation that could stifle innovation?
By giving that choice to the consumers and brands. Lets face it, you can’t change everyone’s minds overnight. Just like raising my twin sons:  From time to time I have to let them fall and learn a lesson, especially when they just don’t want to listen the first time. To add to that, I can’t always be there to save them from the bumps in this road we call life. However, I can build good decision-making tools and a foundation so they can see the errors and making corrections when needed.
Now, I also can’t tell marketers how to run their businesses, but I can tell them the possible negative consequences if they continue down these wrong paths. Luckily, many listen the first time, but much of that is based on the cases that I make to them not just by saying something will be bad, but also showing them other people’s incorrect uses that got them in trouble. Learning from others’ mistakes as some say.

I also would say that history has shown that if and when restrictive legislation comes to light, we as an industry have always found new and innovative ways to continue the [responsible] data collection practices.

I will always be a supporter of less or no regulations, but sometimes we do need that sort of push to get us moving in the right direction. This was very apparent with the Can-Spam law here in the U.S. It didn’t ruin the digital marketplace for us, our lists didn’t get smaller, and not everyone went to jail for spamming. It actually put simple additional processes in place to help us gain the trust we needed from consumers when they gave us their email address. For me, part of my job is to talk to the regulators about innovation and also show them how the self-regulatory best practices do work today. What the regulators don’t see are the good use cases. They only hear about the bad ones.

Q:  And finally, what does winning this award mean to you?
  I still have a grin on my face from the minute I found out about this award. I’m so honored and humbled to receive this accolade from my extended family and peers. I have to share this with all of you for being a part of those goals to ensure our digital channels are kept open and clean for all to use.

I love the fact that we’ve all worked together, even as competitors, to give clients and brands the best tools and advice to help them be as successful that they can be. This has been a huge team effort. Internal recognition to now acknowledge I was doing my job well and the hard work had paid off. It was also external recognition from the industry association that supported my efforts.

I won't let this award define me. Instead, I will use it as inspiration and affirmation to keep writing, discovering, discussing, challenging, developing, honing my skills, and most of all continue helping others.

I have to close by saying enjoy the journey of life and your career path.  It’s about the experience - and allow it to open your eyes to the greater experience of people and teamwork to benefit the many. Definitely get a lot out of your networking, day-in and day-out. Meet new people whenever you have the opportunity and let them do the talking from time to time. Get to know what they are passionate about. You never know that your paths may cross again in the future or as in my case, they become good family and friends.

Please let us know some of the ways YOU are bringing your passion to your business – and how you  are using email to boost your success.

Lisa Brown Shosteck

Managing Director, eec



Email Marketing Winners Show How It’s Done – Part 1 of 2

As managing director of the eec, DMA’s email marketing arm, I was so pleased and thrilled to announce that we will be honoring two remarkable industry leadersZack Notes, Senior Analyst, UncommonGoods, will receive the Stefan Pollard Email Marketer of the Year Award. This award was established in honor of Stefan Pollard, a highly respected and beloved member of the email marketing community who suddenly passed away in 2010.

Our Email Marketer Thought Leader of the Year Award goes to Dennis Dayman, Chief Privacy Officer, Oracle | Eloqua. This new award  recognizes an industry leader who has made a substantial positive impact on the email marketing community as a whole, and/or on individual client(s).

Both awards will be presented during a special celebratory luncheon honoring the award recipients at the Email Evolution Conference, which will be held January 22-24, in Miami, Florida.

In this two-part series, we bring you some questions and answers with both honorees – to gain further insight into their outstanding work. First, we’ll hear from Zack Notes:

Q:  How do you promote and advance best-practices within your work – with consumers and/or with other businesses?
Best practices are always changing so it’s important to stay current with industry blogs and publications. Externally, we are in constant communication with our ESP, Silverpop, as they always have the latest information on best practices, especially spam compliance, preference center flow, deliverability, etc.  We also communicate frequently with the smart people at Litmus as a reference when we have technical questions about content, especially mobile content.

We meet with a monthly catalog consortium group, with which we share our opinions on various practices. Recent discussions have included holiday send frequency and gmail tab management. Lastly, I have used my recent public speaking gigs as a podium to encourage others to try our methods of frequency control.

Q:  In what ways has mentorship figured into your work?  Do you feel mentorship is an important component of encouraging responsible marketing practices in the generations to come?
Definitely.  I have a twelve year-old neighbor who told me he wants to be a software developer when he grows up. I got him started on code academy and we’ve been working on python problems together. I think any marketer would be wise to incorporate a mentorship into their life. We can teach them responsible marketing and they can teach us the newest social channels we’ve never heard of.

Q:  How has the explosion of Big Data changed the way you do email marketing?
  Personalized emails that trigger in real time. This is my biggest email project in 2014 — and it wouldn’t be possible without Big Data sets and processing power fast enough to do collaborative filtering, product-based recommendations, etc.

Q:  What is the most rewarding aspect of your work?
We are still a relatively small company with limited reach. It’s always rewarding when I meet someone who has actually heard of us. My cousin sent me a gift from UncommonGoods. She doesn’t know that I work there. That was awesome.

More specific to email, we’ve done a lot of work to improve the customer experience – we’ve built a responsive email frequency system which responds to engagement. We’ve given customers the ability to change their frequency manually and even take a temporary break from emails for a period of time. As a result, we’ve seen unsubscribes go down dramatically and it is rewarding to know that I am developing a program that is more rewarding than it is intrusive.

Q:  And finally, what does winning this award mean to you
Zack:  It’s validation that I must be doing something right. It encourages me to try to make more of an impact and influence the email marketing industry in a positive way.

Stay tuned for insights from honoree Dennis Dayman.  Until then, please let us know some of the innovative ways YOU are using email to boost your business success.

Lisa Brown Shosteck
Managing Director, eec



Canada’s Anti-Spam Law, CASL, is now a done deal

On Thursday November 28th 2013, the Treasury Board of Canada President (and champion of CASL) Tony Clement approved Industry Canada regulations in their final form. Today, December 4, 2013, the Minister of Industry the Right Honourable James Moore announced CASL will come into force on July 1, 2014. That’s right folks, six (6) month from now.

Canada Day 2010

After almost ten (10) years of work, Canada has finally put into place an anti-spam law which continues their long-standing Canadian tradition of having opt-in consent. Most online marketers doing business in Canada today are already familiar with their “Personal Information Protection and Electronic Documents Act” (PIPEDA) which is their privacy regulations that require opt-in for processing of PII, but now is enforceable specific to the use of digital channels like email and SMS.

The law imposes onerous opt-in and other responsibilities on marketers doing business online in Canada. It covers items such as the sending of Commercial Electronic Messages (CEM), prohibition of installing computer programs without consent, and sending messages with false or misleading information in the content or header. You can read more about their specifics here at the Oracle | Eloqua site Topliners.

Please note though that CASL is not restricted to residents or companies in Canada, it applies to all marketers sending email To: and From: Canada. The CRTC will work with the Federal Trade Commission (FTC) in the US, and other regulatory commissions to enforce this new law.

Under the new law, a definitive set of requirements and enforcement actions are laid out and penalties for violation of the law can be severe. Unlike CAN SPAM, which covers only email, CASL covers CEM, which is defined as any commercial "message sent by any means of telecommunication, including a text, sound, voice or image message." Effectively, this includes:

  • CASL requires express consent. This means NO pre-checked boxes.


  • Again, CASL is not just an email law.
    • It covers installation of computer programs without the end user’s consent
    • It covers any Commercial Electronic Message (CEM). A CEM is defined as any electronic message that encourages participation in a commercial activity. Simply including a link to your website in an otherwise non-commercial message could potentially cause it to be covered by the law. A CEM could for example be:
      • Email
      • SMS
      • Instant message
      • Some social media messages


  • It covers any CEM sent TO or FROM Canada. The CRTC will work with international regulatory bodies such as the FTC to ensure compliance by parties based outside of Canada’s borders. Note that there is a provision for instances where a recipient is travelling to Canada and the sender would not reasonably be expected to know that recipient was in Canada at the time of transmission.
  • Prescribed information is to be included in every CEM as well as any request for consent. Requests for consent are also covered by the law, which means that they cannot be sent without first obtaining express consent.
  • Existing contacts cannot be ‘grandfathered’ in most cases and will therefore require marketers to gain affirmative consent from their Canadian contacts before the law comes into force.
  • Fines are steep, up to 10 million dollars per violation and private rights of action are permitted. 


Businesses will need to scrub their lists and remove any covered address for which there is no affirmative opt-in to receive email and other CEM. It is expected that many email lists will be significantly reduced in size as a result. Privacy Policies and form collection on websites should be updated to ensure proper consent. In the case of forms, this includes moving from an opt-out (pre-checked) to an opt-in (not pre-checked) methodology.


Dennis Dayman, CIPP-US, CIPP-IT


Chair EEC Advocacy Subcommittee

DMA Ethics Committee Member



Understanding Canada's Anti-Spam Legislation (CASL)

The email marketing landscape is always changing as marketers find new and savvy ways to boost engagement, increase conversions, and maximize their efforts. But, beyond the discussion of open rates, click-throughs, subject lines, A/B testing and deliverability is the issue of compliance.

In an overall sense, there are two rulebooks that email marketers follow:

  • "Best Practices"... which are the processes we abide by because we know it treats our customer’s inbox as a special place and that’s a responsibility we take seriously.
  • "Legal Compliance"... which are the specific and mandatory rules we follow because our actions are governed by law [....and because none of us would do well in prison! :) ]

Most marketers are familiar with the US CAN-SPAM Act of 2003. But, now Canada has their own proposed version of anti-spam legislation that in it’s current state goes much further than it’s US counterpart.

It’s important marketers are aware of the new proposed legislation so they can begin taking action well in advance to ensure they remain in full compliance. While there is still a lot of time to make sure your ducks are all in a row to appease CASL, it’s never too soon to get started.

This post will cover the main highlights of Canada’s proposed Anti-Spam Legislation. For a more in-depth summary, you can read my blog post titled “All About CASL (Canada’s Anti-Spam Legislation) in Plain English”.

I’m Not In Canada, So Why Do I Care?

CASL isn’t just focused on Canadian email marketers, but rather extends its coverage to anyone who is emailing someone that will receive that message within Canada.

So, if you run an eCommerce store out of the USA, but you occasionally sell to people north of the border and have those folks on your mailing list, then CASL is in full force for you.

It’s not just those in North America that have to play under these new rules because the people behind CASL are hoping it’s reach will extend to marketers internationally who are contacting Canadians. In an interview, the CRTC’s chief compliance and enforcement officer, Andrea Rosen, said:

If the spammer is offshore, we have the ability under the law to co-operate with foreign governments, to share information and to bring proceedings together against individuals that are offshore.

There is an exemption written into CASL that if the sender does not know or could not expect to know that the receiver would be using a Canadian computer to access the email, then you’re off the hook. So, if your USA-based eCommerce store doesn’t ship to Canada and you have no Canadian’s on your mailing list, but someone has taken the trip to see the Jays play in Toronto and while there they get your email, you don’t have to panic.

Do keep in mind, however, that ignorance won’t be an excuse so even if you don’t think you have Canadian’s in your database, be sure to be on the lookout for that. At Elite Email, we have been prompting people to look at their geo-reports to get a sense of who is engaging with the email in Canada because it might be more than you think.

What are the key requirements of CASL?

The current proposed regulation is really long and if you care to see the whole thing in it’s entirety, you can click here.

For those that are too busy to read the whole law (...and that is probably ALL of us!) here are the primary requirements:

  • You must have permission BEFORE sending an email.
  • You must be able to prove that you have received clear consent (more on “consent” below)
  • You cannot use false or misleading subject lines or sender names.
  • You must have a working unsubscribe mechanisms where manual requests are processed within a 10 day window and any unsubscribe links are valid for at least 60 days after the send date.
  • You cannot pre-check subscription boxes on firms. Valid consent must be an affirmative action.
  • You must include a physical mailing address as well as an alternate way to reach you, which could take the form of an email address, phone number or link to contact form.
  • You cannot confirm unsubscribes by sending a follow-up email.
  • If an email is being sent “on behalf of” another organization, you must clearly identify both parties.
  • If you are a charity, then you are included in CASL if you are selling or soliciting anything.

One key thing I want to highlight is the notion of subscribing to your mailing list as an affirmative action. I see a lot of signup forms where the box is pre-checked and you have to uncheck it to indicate you don’t want to signup for a mailing list. If your organization is doing this, then it’s one of the first things you should consider changing. It’s a quick change that will ensure all new subscriber acquisitions are valid under CASL.

Signup Form With and Without Affirmative Action

Consent, Consent, and More Consent... It’s All About Consent!

While there are lots of different facets to CASL, if I had to boil it down to one thing, I’d say that the most critical factor is ensuring you have obtained consent properly. If you’ve done that, then you’re heading down a good path.

CASL currently outlines four different scenarios that would qualify as consent.

Consent Scenario #1: Implied Consent

This is the scenario that many people will already be familiar with as it’s the one that is based on an existing business or nonbusiness relationship between the recipient and sender. Essentially, if someone has bought something from your organization or entered into a contract with you then you have a “business relationship” with them. Whereas, if someone does volunteer work for you or becomes part of your organization, then you’ve got a “nonbusiness relationship” with them.

The critical part of this type of implied consent is the 2 year time limitation. From the moment someone purchases something from you, a 2 year window commences where you can email them and be in compliance with CASL without needing any other form of consent. On top of that, if that same person buys something from you again during that window, the clock resets and you get another full 2 years. However, as a general rule of thumb, at some point during that 2 year window, you would want (or need) to obtain explicit consent in order to keep emailing them after that window expires.

Consent Scenario #2: Explicit Consent

I suspect most email marketers are already actively engaged in this type of consent where the recipient gives you direct permission to send them emails. Most commonly you will have a signup form on your website that lets people join your mailing list. This direct type of consent is really at the core of CASL, which is why it’s important that you obtain good evidence to support your practices. Doing things like capturing the date stamp and IP address of a new subscriber when they join your list and then when they confirm their subscription (for double opt-in) will help ensure you’ve got a strong case should someone challenge if consent was obtained.

As I mentioned previously, make sure your signup forms require an affirmative action and not an opt-out action. So, if you’ve got a sneaky pre-checked box that auto-enrols people, you’re going to want to change that up ASAP because it won’t count in the eyes of CASL.

According to CASL, you can also get written or oral consent and while that is acceptable, it should be noted that these methods are far more difficult to prove. If you plan on using these tactics, make sure you’ve got a workflow that allows for the careful documentation of when, where and how consent was obtained.

Consent Scenario #3: Conspicuous Publication

This is a rather unique scenario that is very different than the two above. You can send someone an email if you obtained their email address and the following three criteria are also met:

(i) The email address is clearly published for viewing.
(ii) In the location where the email address is published, there is no specific statement saying that unsolicited emails are not allowed.
(iii) The email you’d be sending to that address is related to that person’s business or official role. [For example, you can email a university professor about a new book that is related to their field of expertise/interest, but you cannot email that same person trying to sell them concert tickets. It’s a bit tough to exactly draw the line on what is related and what is not, so we might see this further clarified CASL.]

Consent Scenario #4: Shared Email Address with the Sender

This is the “business card” or “networking” rule under CASL that lets you send someone an email if they willingly share their address with you. CASL doesn’t want to render the email address on a business card useless, so if someone shares their card with you and doesn’t say they do not want to be emailed, then you can email them and be in compliance. Be sure to document the how, when and where they shared their email address with you so you’ve got that on file in case you need supporting evidence. However, do keep in mind that if you want to start sending someone your monthly newsletter (and not just emailing them as a follow-up to a networking event) you should obtain consent using another method as well.

What Happens If I Break The Rules?

Shame on you! Now go sit in the corner and think about what you’ve done!

But, on top of that shame, penalties for violating CASL can range from a maximum of $1 million for individuals and $10 million for companies.

It should be noted that anyone can bring this new law against a sender, it doesn’t have to just be the government or other legal agency against the sender. Of course, if someone goes down this path and it turns out they were wrong, then they are responsible to cover all court and legal fees.

Also, the reason I have been harping in the sections above about keeping evidence for how you obtained consent is because if you can show that you really made strong efforts to follow every aspects of the rulebook, then that will play a factor in any legal proceedings.

When Does All These New Rules Go Live?

There is still no specific date set so at this point everything is an estimate, although there have already been delays so further delays are not out of the question.

Based on the current flow of events, Industry Canada should have the regulations finalized by the middle of this year (2013). After that, there will be a one year grace period for everyone to digest these new rules and prepare for the coming changes, which will result in CASL going live some time in the middle of 2014.

That being said, there’s no need to wait until the final minutes to start ensuring your compliance with CASL. Although certain parts of the proposed legislation may change, the underlying concepts about the ways you can obtain consent probably won’t change much. So, take a good look at your database now and start to figure out who you may need to re-confirm and what evidence you’ve got to support that consent has been obtained properly (in the eyes of CASL). Review all of your signup and capture forms to make sure that it is an affirmative (and not opt-out) action that enrolls someone on your mailing list. Lastly, doing a periodic top to bottom review of your organization’s email practices can usually either confirm you’ve got your best foot forward and are ready for CASL or highlight areas that you need to improve upon... and there’s no time to take those steps like the present!

* Note: This article is intended to provide general comments about Canada’s new anti-spam legislation. It is not intended to be a comprehensive review nor is it intended to provide legal advice. Readers should not act on information in this article without first seeking advice from their lawyer.

Robert BurkoRobert Burko is CEO of Elite Email, a leading email marketing solution and proud member of the Email Experience Council that has been helping businesses of all sizes harness the power of email for 10 years. Robert has been featured extensively in the media for his knowledge of email marketing, social media and digital trends. You can also find him on .  


Test These Email Campaign Elements to Optimize Performance

Test These Email Campaign Elements to Optimize Performance
Author: Stephanie Miller, co chair, DMA/eec and VP, Aprimo

Email marketers always are on the hunt for ways to optimize performance.

In fact, a study from Marketing Sherpa found that most marketers routinely test at least four different email campaign elements:

marketing research chart for blog

 Which of these should you pay attention to? What are the most important email elements to test?
Usually, the answer is in finding the right combination and optimizing over time.  Let’s take a look at the top five.

Subject line
The best guide in subject line writing is that, “Clarity trumps clever. “ Say what you mean, say it succinctly and say it with gusto.   Avoid lots of punctuation or aggressively spammy techniques like repeating the word “Free” six times or using symbols to replace vowels like  “Vi@gra.”    Other than that, feel free to be a marketer and tell me about the offer and the sale prices.  You may find that  shorter subject lines  outperform longer ones – depending on the type of message.   You must test this, as we see results favoring both styles win.  Optimal performance depends on a variety of subject line factors.  Consider: 

• Don’t wait until the last minute to write subject lines. Craft them as a key part of the creative process.
• Focus on clarity, and front load subject lines with the most important information as many email clients and mobile devices will truncate longer lines

• Use longer subject lines  whenever  there is a compelling reason to do so, or if you have multiple offers in the same message
• Test!

Message Format
Be sure to test your message template every quarter to be sure it continues to serve you well.   Test for spam filters, but also for response.  Is your navigation in the way of offer prominence?   Would a sidebar serve you best, or does it distract from the core message?  Does your footer have the correct legal mumbo jumbo and privacy/compliance links?  The DMA/Email Experience Council released a number of Design Checklists for this purpose. Download them (free for members) in the Resource Room.

Relevant content is essential. Subscribers are too busy –and too overwhelmed with digital content –to read messages that aren’t specifically related to their needs/wants. Make sure your message is meaningful and that it stays true to your brand’s voice.  I just published Seven Tips for Higher Click Through Rates on the Aprimo blog  (LINK:   Consumers are savvy and impatient, so  entice them with information that’s relevant and specific.  Consider that there are many elements to a message:

1. Button.   Perhaps rather than “Click Here,” your readers would like to be invited to “Learn More” or “Get Discount,” instead. Be realistic about what your readers are prepared to do (not everyone will be ready to “Buy Now!” after reading a few lines of email copy) and be clear with your directions.
2. Message type.  Design calls-to-action customized to each email type and purpose. As always, , pay careful attention to their frequency, font, color and location on the page.
3. Offer.  Testing offers is not specifically on the Marketing Sherpa list, but I can’t imagine it isn’t a key aspect for optimization.  Automation technology and the use of personas can guide you in putting the right offer in front of the right person at the right time. 

Layout and images
Email layout and images are more important than ever. Odds are, many (if not most) of your subscribers use an email preview pane feature that displays horizontally. It’s also likely that they block images by default and access email on mobile devices. Plan accordingly. Opt for more horizontal v. vertical elements. Don’t count on images to convey your message. Create content that can be read in different formats and on smaller sized screens.

Day of week sent
As my fellow columnist Simms Jenkins concludes at ClickZ, there is no magic bullet for timing emails. Today’s subscriber lists are typically diverse, and they’re likely to include international customers, people who can/can’t access email during the work day, those who read email on mobile devices, various age groups, etc. Obviously, trying to pinpoint an optimal send times across this wide-range of readers can be problematic. You have to use some judgment , of course–I wouldn’t choose Monday morning to send out a coupon for a Saturday night dinner special, e.g.  –but don’t expect a one-size-fits-all solution for every email campaign.

In all marketing, Your mileage may vary.  Testing will give you the insights needed to determine optimal send times for your particular message types and audience profiles. Marketing automation plays an increasingly important role, as well, as it allows you to track performance, integrate email communication with other marketing tactics, manage campaigns and change responses based on reactions from the marketplace.




Consent Matters: What the Canadian Privacy Legislations (CASL) Mean to Email Marketers

Wow, that hour went fast!  The estimable Shaun Brown, partner, nNovation LLP, a law firm based in Ottawa, Ontario, Canada, spoke about the new Canadian privacy legislation – referred to as Canada’s Anti-Spam Legislation (CASL – an acronym that many speak like the word “castle”) – that has many email marketers confused on compliance requirements and timing.  Listen to the November 10th webinar (and we highly recommend it) for free here.

Brown compared CASL to something many of us already know – the U.S. CAN-SPAM law of 2003.   Bottom line:  In many areas – permission, notice, coverage and risk – CASL is much broader.
  • Scope:  CASL covers not just anti-spam, but also anti-malware, anti-hacking, and through related amendments to other legislation, control of content and misleading information, as well as privacy of personally identifiable information (PII) (harvesting, dictionary attacks).
  • Application/Jurisdiction:  CASL covers any message sent from or accessed by a computer in Canada (regardless of where the sender is located).  We are talking about all electronic messaging – email, instant messaging, SMS, social – plus anything new that comes along.  (Fax and voice are covered by Canadian do no call regulations.)
    1. Note that there is no minimum number of messages. So sending one message is enough to put you under jurisdiction of the law.
  • Coverage:  CASL applies to commercial activity, defined pretty broadly.  For example, Brown said in the webinar, if you are promoting a person who normally promotes a product or service or business opportunity -  even if you are not specifically promoting that product, service or business opportunity in the message -  then your message is covered.  
    1. Note also that any message sent to seek consent is considered commercial – so you can’t send a request for consent. There are no exceptions for research studies, for example. “This will have to play out in the courts in deciding what is ‘commercial,’” Brown said.  “I would not be surprised if this was challenged.” As the law is enforced, Brown says, we will have more guidance on what is considered “commercial” under the Act.
Compliance with the anti-spam aspects of CASL encompasses three broad categories:
  1. Prior consent – defined as either express or implied.  Both are acceptable for all situations and of equal value.  (Implied does expire, though.)
      a.    Express: Must include clear notice and the provision of a set of prescribed info from subscribers when providing consent.   The owner or any authorized user of the email address must give the consent.
      b.    Implied:  The Act deems implied consent when there is an existing business relationship (e.g.: a customer who has purchased in the past two years, or if there is a contract or a subscription which has been active in the past two years.)
      c.    Once consent is implied (e.g.: a purchase), you generally have two years to send messages in compliance (or obtain an express opt in).  An express consent never expires, and is valid until the individual withdrawals consent.
  2. Information
      a.    Must include contact information for the sender and the subscriber.  It is not clear in the law what this must include.
      b.    Regulations are expected to define this further.
  3. Unsubscribe
      a.    An unsubscribe opportunity must be provided in all messaging and be available for  60 days post delivery.
      b.    Unsubscribe requests must have no cost, and use the same means by which the message was sent (unless impractical), either via replyto: or a link.
      c.    Must be processed “without delay” (and within 10 days) with no messages sent after the request.  This aspect may also be defined further with regulation.  “Senders must be able to demonstrate that you put forth a best effort to act on unsubscribe requests quickly, with the intent to stop messages,” Brown advises.
CASL was created with both public and private enforcement opportunity.  The Canadian Radio & Telecommunications Commission (CRTC) is charged with enforcement.  This is a civil enforcement agency, there are no criminal provisions.  There is a private right of action available to any individual impacted.

Right now, the law is not in force.  It was passed in December 2010 and regulations were published for comments this past summer. The Government is still working through those comments (there were many!).  No timetable is published for a second set of regulations; however Brown expects something by early 2012.   The government is also setting up a Spam Reporting Center, which will be a website to gather evidence and monitor trends as well as provide consumer education.

Key differences from CAN-SPAM
In preparation for enforcement, Brown recommends three primary areas for marketers and senders:
  1. Check your lists. Do you have consent – and evidence of consent?  The burden is on the sender to prove consent.
  2. Check location of subscribers where possible.  The law doesn’t care what the domain of the address is, or if the sender has a clue where the recipient is.  If the message is received on a computer in Canada then it applies.  If a sender does make an attempt to gather this data, This may be a factor in exercising the due diligence defense, where no one can be charged if they have shown due diligence to comply.  “Be sure you have a business objective in NOT complying with the Canadian legislation,” Brown says.  Note that reconfirmation of some permission grants may be necessary.
  3. Watch for regulations re: content of messages. The regulations will clarify the information required when obtaining consent as well as when sending a message.

As with any legislation, the devil is in the details.  The Email Experience Council recommends that you have legal counsel review the law and determine the next best steps for your organization. In the webinar, Brown gave his thoughts on some key business issues and applications:
  • Liability of service providers.  Telecom/ISPs are generally going to be exempt from liability under the anti-spam provisions where they merely provide the telecommunications service allowing the message to be delivered. However, it’s not clear if this applies to email delivery service providers.  “If you are merely providing a ‘do it yourself’ service and the customer manages the list and the unsubscribe, then it may be that the delivery provider is covered under the Telco exemption,” Brown says.  “This may be different if you offer a full service offering.”
  • Ownership of the message, for example, placing ads in an editorial newsletter or providing the name of the email delivery vendor in the message itself is not directly addressed in the law.  “In my view it doesn’t make sense from any perspective to say that the ESP is sending on your behalf, for example identifying the ESP in the message,” Brown says.  There were a number of comments on this as the regulations were reviewed this past summer, and Brown hopes that some clarity will be offered in future revisions.
    1. This brings out the question of where an agency or service provider is vulnerable by trusting their client.  If the agency or ESP sends unsubscribe data to the sender, is the agency responsible if the client doesn’t take action?  “The law is broad, so if you are aiding or causing company to avoid compliance, then you are potentially responsible.  The way to manage risks like this is to inform your customers of their obligations, make sure you have the appropriate language in your agreements, and ensure the relationship agreements are clear who is taking responsibility for managing unsubscribes requests,” Brown advises.
  • Transactional messages.  The legislation does not refer to “transactional” messages.   The law does cover some types of messages that could be considered transactional (e.g.: service notices or warranty information).    The law states that these types of messages require an opt out.  “This somewhat confuses the issue, by listing out messages that, in many cases, are likely not commercial electronic messages and therefore not covered by the Act to begin with,” Brown explained.
  •   Point of Sale.  What if you ask verbally for consent at the POS?  Brown says that the original draft regulations from the summer declare that consent must besought in writing only.    However, this may be removed based on the amount of comments against it. “I would like to think that if you are entering this into a system form, and there is a date stamp, that this would meet the evidentiary burden under CASL,” he says.
    1. There is no legal requirement to send a follow up message, but “It’s always good idea to remind people of their subscription and why they have provided consent.  It’s more of a relationship issue than a compliance issue,” Brown says.
  •  Is list rental dead?   A properly compiled permission based list is quite valuable, and the law does not forbid the rental of them.  “It’s not dead, but CASL places a higher onus on list owners and senders to make sure it’s done properly,” Brown says.
    1. The act of appending is not covered under CASL. It is likely covered under privacy laws, particularly if you are making changes to PII footprint without consent.  There may be some situations where appending data is allowed under CASL.   If you have a business relationship – e.g. purchases in the past year – then this append may be in compliance with the CASL legislation.
  • Mobile Access.  No one anticipates that certain one-off situations will be covered under CASL (e.g.: a US citizen goes to a coffee shop in Toronto and checks his Gmail account).  Brown expects that the government also did not intend to the law to apply to Blackberry users worldwide when accessing email (e.g., through RIM servers located in Canada).   “I think the intention is not to apply the legislation so broadly,” he said.  It’s not clear how data centers for companies that are not Canadian based will be treated – although Brown expects that they will need to comply just as if the entire company was based in Canada. Messages sent from those centers will be “Canadian” under this law.
Many thanks to Shaun Brown and nNovation LLP for an excellent presentation and generous review of so many audience questions. nNovation LLP is a pre-eminent Canadian law firm that advises companies, industry associations and other private and public sector parties in their business relationships and practices, and in connection with a broad range of Canadian regulatory regimes. With several years of experience both in the public and private sectors, Shaun’s practice focuses on emarketing, ecommerce, privacy, and access to information.   

Thanks also to the eec's Deliverability & Compliance Roundtable, led by Matt Rausenberger of Return Path and Dennis Dayman of Eloqua, for sponsoring and organizing this event.

If you are not an Email Experience Council member, please join us for free access to these kinds of event and resources.  If you are a member and would like to join one of our member Roundtables (committees), please email Ali.

- Stephanie Miller
eec Co-Chair


Build vs. Buy: The real cost of building an email solution

The trend for several years now has been away from building and toward outsourcing, yet some organizations still think building an in-house email marketing solution is the way to go. The market offers numerous ways to build your own in-house solution. But what's the real cost?

Some organizations have so much IT talent that they think they can build their own email marketing system. A perceived cost savings typically drives this decision. Would they consider building their own print shop? Probably not. It's a matter of sticking with your core business vs. being your own vendor.
There are so many possibilities for email platforms these days. ESPs have been around for over a decade. They are a tried-and-true way to go as the "buy" option for companies preferring to outsource the infrastructure. If an ESP isn’t for you and your organization plans to build, I offer some factors to consider to help you determine the real cost.
There's a real cost to building that must be considered. It's a capital expense vs. an operations expense. But building comes with operational expenses too…and the cost of not having certain competitive capabilities.

"Building" can mean a variety of approaches to your email marketing system. It might mean you're buying a server from StrongMail or using an online solution like Amazon Cloud. It can also mean you’re building from scratch. There are sending solutions where sending is hosted but you still have to do the front end. No matter the route you go, if you build, you will have to manage the hosting, maintenance, firewall, integration and more. Much more. When you “buy,” you’re outsourcing the infrastructure and getting invaluable additional benefits as well, including deliverability, currency and relevance-enabling tools.
Deliverability is critical. It directly impacts your email marketing ROI. If an email isn't delivered, you have zero potential for an impression or sale. In fact, you don't even get to work a little brand awareness in there. An undelivered email might as well not exist. When you buy—meaning outsource—your email solution, you get a team of postmasters who will keep your email deliverability rate up. When you’re doing this in-house and you run into an email delivery problem, you’ll either have to  hire a consultant to help or be willing to dedicate your IT team’s time to figuring out the problem – which is not easy to say the least.

Plus there's staying current. ESPs are constantly evolving, continually adding new features to keep up with email deliverability requirements and consumer expectations. If you build your own, you are essentially freezing yourself in time. For some organizations, the incremental cost for email goes away. But you still have IT costs. It's a business decision and there are tax implications as you consider capital vs. operating expenses.
To compete in the inbox in 2011, you must have relevance-enabled tools. Those tools used to cost thousands of dollars. Today they cost hundreds...when you outsource. Relevance-enabled technologies include trigger-based and event-driven emails, lifecycle and drip campaigns, and dynamic content. You can build out these capabilities, but the undertaking is massive. And massive means pricey because you're talking payroll costs and lost opportunities while you wait for your solution to be built and deployed.
Top-tier ESPs have this relevance-enabling technology built in to their platforms. That means "buying" instead of "building" lets you take advantage of these competitive advantages from day one.
Relevance also requires website analytics resulting from a recipient interacting with an email. Many web analytics platforms can track this at a macro-level, but the real value comes when the data is tied to a specific email address. If you don't have the tight integration required to give you insight from web analytics, or integration with your CRM system, you won't be able to do truly relevant, targeted email marketing.
How long will it take to build and deploy?
If your IT department says it will take six months to build, plan on 12 to 18 months before you're fully functional with all the features you want. Can you wait a year and a half for a good email marketing system? While your competition is emailing your target market, you won’t be…or at least you won’t be at the level of effectiveness you want, meaning your competition will likely win out.
Don't forget the payroll costs
Consider the staff time and associated payroll costs. If you're going to build and maintain in-house, you’ll need at least two staff people trained so you'll always have someone on hand if problems arise. In addition to the IT aspects of building and maintaining an email solution, at least one of your employees must have expertise in email areas like privacy, working with ISPs, deliverability issues, protecting your online sending reputation, being CAN-SPAM compliant and more. If you plan to design your own emails or use rich media email, you’ll also need someone who is an expert and who will take into account rendering issues in different email clients and on handheld devices too. That’s three staff people. What does that add up to when you add in all the benefits, taxes and other costs of adding a body to your payroll?
Unless you are sending hundreds of millions of emails monthly, outsourcing is cheaper...and safer. Building might look cheaper at the outset, but the cost is going to be higher than you anticipate. If email isn't core to your business, outsource. If it is core to your business, absolutely critical, maybe build. Maybe. But consider every single cost.

- Marco Marini
ClickMail Marketing


Why Relevancy Matters: A Rare Email Marketing Miss from LinkedIn

When LinkedIn hit 100 million users a couple of weeks ago, they did something really interesting: They sent out “Thank You” messages to all of their early adopters. I was not among them (I was still a college student (yes, I’m younger than you think) when LinkedIn came around), but many of my colleagues in the email marketing community did. It even became a competition to see who was the “earliest adopter.”

Good stuff, right? Absolutely. And I’ve always been a fan of how LinkedIn very subtly uses email.

Which is why the message I received today from LinkedIn was very, very surprising. See below:

SUBJECT LINE: Introducing the Student Job Portal on LinkedIn

LinkedIn Email

Let’s examine this message for a minute. Here’s what’s good:
  • The product being announced can and likely will be very useful.
  • The social sharing buttons at the top.
  • A very simple call to action.
  • The “know what you’re looking for? Jump right to it” section.
  • The headline and supporting copy gets straight to the point. Nice job.
Here’s what’s not so good about this email:
  • First and foremost: I’m not a student or an entry-level grad. And LinkedIn knows that. The message is for these people, not “Hey, if you’re looking for interns, we have this new portal.”
  • The guy is clearly too old to be in the demographic they’re looking for.
  • The blueprints of the cars, while cool, doesn’t really match the “start blazing your trail” meme in this email. Imagery that speaks to trailblazing and paths would be much more effective, in my opinion.
  • A clear-cut CAN-SPAM violation, with no mailing address to be found in the message.
But let’s speak to the larger picture, and why I think this is a miss: LinkedIn has all of the tools to be relevant in their messages, and they forgot that. They have my job history, the types of companies I’ve worked for, the searches I’ve done in the past. All of those could have been used in this message.

At the least, LinkedIn could have sent two versions of this message: one to those in the market, and one to those who might be offering those internships and entry-level jobs.

Those “Know what you’re looking for?” Those could have been targeted to the occupations that the individual was most interested in.

Why does relevancy matter? Because the power of email marketing resides in your ability to provide your recipients with the information they want (and need). Your email program should be about what those wants and needs, and your messaging needs to at least try to hit the right tone each and every time.

The chief takeaway here: Utilize your data and resources to make your messages strike the correct chord with your subscribers.

For a company that usually utilizes email very efficiently (in my opinion), it’s surprising to see this kind of miss. Particularly for a new product that could be very beneficial to many individuals and companies.

- Scott Cohen
VP, Managed Services
Inbox Group (a new eec sponsor!)

3 Questions for Eloqua's Dennis Dayman

This week at our European Email Marketing Conference in London, we caught up with Eloqua's Chief Privacy Officer, Dennis Dayman.

Read on for his predictions for 2011 as well as some information on Canada's new anti-spam law, C-28.

1) What are some of your top takeaways from this week's conference?

This year's European Email Marketing Conference (EEMC) was a great success! Marketing and email professionals from all over the world came together to discuss issues and challenges they face.

For myself and others, one of the known mountains we have to climb in the European Union (EU) is required permission for marketing. Marketing itself is the same throughout the globe, but in the EU, collection, processing and transferring of marketing information can be much more "difficult" at times due the privacy requirements that surround it. This means to many here that new things like social media sharing have to have a new and different way of thinking when the uses are for marketing purposes. 

Many companies like Eloqua are global in nature and when launching marketing programs across their brands and customers, they have much more to think about than just hitting the "send" button; for example, explicit opt-in.

This week's conference really helped expose these known - and sometimes complicated - matters for global companies and how to solve them.  Lots of stories and examples were shared freely at the event, allowing others to get an idea of how to properly run a campaign no matter where you do business.

Thanks to all the participants for being so helpful to each other and participating at such a personal level. I am certainly looking forward to the Email Evolution Conference in Miami!

2) What are your predictions for compliance and privacy changes in 2011?

There are some major changes coming to the world of marketing in 2011.  Today, most of the world has some sort of privacy data protection in place, but many of the laws are being updated to keep up with changes in the industry and ways in which data is used. 

Here are some items to keep on your radar:
  • In the EU, starting in May 2011, dropping and accessing a tracking mechanism like a cookie will become illegal without explicit permission to do such.
  • US legislators might attempt another go at federal privacy legislation in 2011 which would require an opt-in to collect and process data.
  • By the end of this year, Canada is looking at putting into place an anti-spam law that will make the sending of "spam" illegal and prosecutable.

Over the next few years marketers can expect to see more privacy requirements imposed on marketing processes.  Much of this is due to the sheer volume of information being kept on individuals and this isn't something that shouldn't be feared as most of today's marketing best practices already ask you to obtain permission to collect and use data on individuals.

As these issues come up, be assured that we in the industry along with the eec/DMA will look out for your best interest.

3) Can you please provide an update on the recent anti-spam legislation in Canada?

As a quick recap, anyone sending commercial email from Canada or to someone in Canada will be subject to C-28 (formerly known as Fighting Internet and Wireless Spam Act - FISA). FISA requires marketers to get permission, either implied or expressed, before sending commercial email to Canadians.

While at EEMC this week, there was some good news that came from Canada.  Canadian anti-spam bill C-28 passed through House of Commons Industry, Science and Technology committee in 48 minutes (WOW!).  One objection was made to the short title (FISA) and it was removed from the bill. The bill now goes back to the house for a 3rd and final reading and a vote which means Canada might have anti-spam legislation by end of the year.

For more information about what is coming in the law, visit:“spam-haven" and

- Dennis Dayman
Chief Privacy Officer


U.S. Congress Planning Broader Email & Digital Marketing Enforcement and Regulatory Power for the FTC

The recession has made citizens more attentive to scams, especially those that promise easy money or frighten people about the banking system.  This accelerates the already large regulatory agenda of the U.S. Federal Trade Commission (FTC), whose role as a “civil prosecutor” includes regulating and enforcing protections from online offers, advertising and email marketing.  Congress is also stepping up, and two major initiatives around privacy protection and the role of the FTC are in active play.

Partnering with all of us in the email industry and watching to make sure we properly self-regulate remains a key component of the FTC’s plans, says Lois Greisman, Director, Division of Marketing Practices for the FTC Bureau of Consumer Protection, who joined our annual Email Experience Council legislative update webinar on May 19th.  “Our goal is to stop fraud and scams as quickly as possible, to shut down offenders, and, where appropriate, seize assets and reimburse consumers,” she said in the webinar.

The recording of the full event is available in the eec Research Store and is free for eec members.

The U.S. CAN-SPAM Act of 2003, which regulates permission practices for email marketing, continues to be a key anti-fraud tool for the FTC.  Greisman noted several successes in prosecuting spammers and other deceptive practices and said enforcement continues to be a major priority.  “CAN-SPAM has worked well to level the playing field among legitimate online marketers,” she said.  She also added that she was not aware of any active proposal by the FTC or Congress to expand or change the law.

However, there are two active proposals of new legislation that could have significant impact on email marketing and the email industry as a whole.
  1. Online Privacy Protection Bill A “Discussion Draft” of a bill to require notice and consent to any individual PRIOR to collecting or using personal information was released in early May in the US House of Representatives from Representatives Rick Boucher (D-VA) and Cliff Stearns (R-FL).  Industry and consumer groups alike are not happy with the draft, including the DMA.  Although it may seem at first that the so-called Boucher Bill was just about online behavioral advertising conducted by large marketers; it turns out that it’s very broad and far-reaching on privacy and data security.  During the webinar, Jerry Cerasale, VP, Government Relations for the DMA, gave a very good overview of coverage, exceptions and terms of notice.  Basically, it impacts nearly all kinds of “first party” senders as well as any other company that has access to that data as a “third party.”  It proposes coverage of an extensive list of “unique and persistent” personal data on consumers.

    “One potentially bad impact this could have on the email industry concerns the scope of covered data, including email address, IP address, and other unique, persistent identifiers,” says panelist Tom Bartel, CIPP, VP, Receiver Services at Return Path.  “If the exceptions for transactional and operational purposes and for service providers are not effective and clear, this bill could interfere with many industry collaborations.  This includes IP-based reputation systems – data that determines if email messages reach the inbox or not.  It may also impact the operation of Feedback Loops provided to email senders by mailbox providers like Yahoo! and Hotmail.  These feedback loops are a key component in how the industry keeps bad actors out of the email ecosystem."

    Both Representatives Boucher and Stearns have indicated a willingness to work with industry and have requested comments on the bill, due by June 4th.  Cerasale said the DMA will be commenting.
  2. Expansion of FTC Powers: Congress is also considering significantly expanding the powers of the FTC as part of the Wall Street Reform and Consumer Protection Act (HR 4173).  There is not a corresponding bill in the Senate, although Cerasale said in the webinar that one may be introduced later this year. 

    Part of the proposed regulation would give the FTC “unbridled authority” to create rules around “unfair or deceptive acts or practices” for many industry sectors.  Cerasale expressed concern about this, and said that more checks and balances are needed.  It is also unclear how this expansion will impact emerging technologies like social or mobile, he said.

    Another part of the proposed bill increases the FTC’s enforcement powers to seek civil penalties.  “That may be helpful in catching spammers and other abusers of email marketing,” said Rick Buck, CIPP and VP, ISP Relations and Privacy at e-Dialog.  “Marketers who feel they are exempt from prosecution because they are legal under CAN-SPAM may be following the letter of the law, but not the spirit.  I encourage everyone to go beyond the legal requirements and aim to provide email experiences that are welcome and engaging to subscribers.”

    The FTC’s Greisman said only that, “We welcome any support from Congress that helps the agency be more effective and efficient.”  There are some “tools that we lack which Congress may grant us the power to use,” she said.

    A third element to this proposed legislation is on responsibility/liability of the delivery provider (broadcast vendor, ESP, MTA Vendor) if their clients do not follow CAN-SPAM or other regulations.  “This aiding and abetting aspect is very concerning,” said webinar panelist, Dennis Dayman, VP, Privacy & Online Security at Eloqua.  “Blurring the lines between purveyor and sender may place an undue penalty on others in the ‘chain of responsibility’ for all brands involved in online advertising or other online acquisition efforts, like third party email senders and publishers,” Dayman said.

Greisman also reported in the webinar that there is no significant update on the behavioral targeting protection guidelines that the FTC has had out for comment for over a year. “Nothing will happen without input from industry,” she said.  Since the mandate from the FTC has been, “self regulate or else,” the webinar panelists Buck, Bartel and Dayman had a number of suggestions for marketers to follow best practices, including:

  1. Ensure transparency in disclosure and notice of permission and use of data.
  2. Be very clear about opt out vs. opt in.  CAN-SPAM requires only an opt-out, but that is the “bare minimum,” Buck advises.
  3. Update your Privacy Policy and provide prominent links.
  4. Audit your data usage practices.
  5. Be clear on use of data in all web forms and at the point of collection/sign up.

Marketers and everyone in the email industry can support the FTC, Greisman said.  She suggests:

  1. File a complaint.  When those complaints are also referred by the DMA, they are particularly helpful, Greisman said.
  2. Make sure your opt out mechanisms are working.  (e-Dialog’s Buck recommends checking this at least annually, and preferably monthly.)
  3. Be clear about the sender and the advertiser relationships.  (Return Path’s Bartel recommends first party senders consider “framing” the content from third parties or advertisers and clearly distinguish between editorial (original content) and advertising.)
  4. Keep data clean, particularly around new sources.  (Eloqua’s Dayman also recommends care around affiliates’ use of data.)

The legislative update webinar was sponsored by Eloqua, e-Dialog and Return Path, with technology sponsor GoToWebinar.  The recording of the full event is free for eec members.  More details on these and other legislative issues important to digital and direct marketers is in the DMA’s quarterly government affairs newsletter, Politically Direct.

- Stephanie Miller
Return Path & eec


Gmail: Unsubscribes, Complaints and Engagement


Gmail reported in their blog this week that they have developed a way to provide their users with an opportunity to report spam and/or unsubscribe from emails they receive in their Gmail accounts. The article, titled "Unsubscribing Made Easy" is a positive change for Gmail, but still falls short of where most legitimate senders want to see.

Like many complaint feedback loops (also known as FBL's) offered by a number of ISPs, Gmail's new functionality is mostly a good thing. I applaud their effort, and it certainly helps when there is this cooperation and transparency in the sender/receiver relationship. It is better for everyone. This is why the Abuse Reporting Format was met with applause by senders when it arrived a few years back.

Here are the good parts. First, Gmail's new feature provides the subscriber with a chance to mark a message as spam, which should allow Gmail to better filter their email. Second, in addition to the option to just report spam, the end user may also choose to "unsubscribe and report spam." This second option apparently is just provided when Gmail deems the sender to be reputable. See the image below for an idea on what the subscriber sees.

Gmail Image






In his blog, Brad Taylor outlines the reasons Gmail pursued the development of this new feature.

"For those of you senders who are interested in this feature, the most basic requirements are including a standard "List-Unsubscribe" header in your email with a "mailto" URL and, of course, honoring requests from users wishing to unsubscribe. You'll also need to follow good sending practices, which in a nutshell means not sending unwanted email (see our bulk sending guidelines for more information).

With an easy way to unsubscribe, everybody wins. Your spam folder is smaller, and senders don't waste time sending you email that you no longer want.

Update (1:50pm): If you want to unsubscribe without reporting the message as spam, click "show details" in the top-right corner of the message, then click "Unsubscribe from this sender."

It is this piece that leads me to a bit of concern on the implementation. If Gmail is doing their usual checks on authentication, reputation, content etc. to determine which senders are legitimate, why then force the end-user to either mark something as spam, or go through "show details" (which nearly no one will do) to unsubscribe? Why not also provide an unsubscribe button on the interface in addition to the "report spam" button?
I can understand why Gmail would forgo providing the email address back to the sender at the user's discretion. However, even the FTC has a study showing that unsubscribing from spam doesn't really lead to more spam. In the FTC's 2002 study, they report that "In no instance did we find that any of our unique email accounts received more spam after attempting to unsubscribe."

Gmail has the opportunity to educate their subscribers on legitimate and unsolicited email. Why not provide just an "unsubscribe" button for legitimate senders, and explain why they are doing it, rather than propagating the unfounded fear of unsubscribing?
Also, other ISPs have gotten around this privacy concern by not passing back the actual email address back to the sender. Many senders use other forensics to determine which subscriber complained so that this subscriber can be removed from the list.

Engagement Matters
We advise clients to look at all sorts of engagement metrics, and unsubscribes and complaints are equally as important as opens and clicks. When possible, I'd like to know the ultimate intent of the subscriber when they choose to get off of a list. I always say I'd rather have someone unsubscribe from my email than ignore me.

As for which email this is enabled for and which not, the folks over at Word to the Wise looked at this a bit deeper and do some testing. They found that:
"Conditions where the unsubscribe option is presented include:

  • The mail is authenticated
  • The sender has a good reputation
  • The email has a mailto: option in the List-Unsubscribe header
  • The recipients marks the message as spam"

Read more about their tests here or here

Either way, legitimate senders do benefit from this, but it is fun to dream of having both unsubscribe and report spam options available to subscribers.


- Chip House, Vice President, Industry & Relationship Marketing, ExactTarget

Chip is responsible for industry research and relations, and owns the targeted marketing programs that ensure the satisfaction and success of ExactTarget's client base.  Chip also manages the teams responsible for marketing research, deliverability compliance, and privacy initiatives.  As an established industry leader, Chip writes regularly for online marketing publications and was named to BtoB Magazine's 2005 "Who's Who in B-To-B" for being a vocal proponent of legitimate commercial email. Chip brings 20 years of direct marketing and twelve years of internet marketing experience to ExactTarget.


Where Does Your Email Really Go?

The internet was designed to be a free exchange of information wherein anyone, upon a loose framework mainly having to do with networking and rendering capabilities, could join, share and digest what they wanted. Email was developed as a predecessor to the internet.  Again, one in which, as long as you had the most basic SMTP compliancy between networks, messages would be handed off between point A to B.

Today, email has turned into a monumentally powerful marketing tool and communication channel that still rivals the internet and other upcoming social networks, regardless of which side of the "email is dying" debate you fall under. With email marketing, forward to a friend, sharing links, email filters and forwarders, along with major ISPs providing outsourcing solutions (like Google Apps), the audit trail of an email is sometimes all but impossible to decipher without CSI level forensic header analysis.

But, you don't care about all this.

What should you care about?

When you place an order to have something delivered with the USPS, UPS or FedEx, that item almost never leaves that company's chain of custody.  Meaning, if you dropped it off with FedEx, the recipient will most likely receive it with FedEx.  Again, there are exceptions, but the vast majority of the time this is the rule.  When you send an email out, though, it may be going to a Yahoo! domain address, then forwarded on to a Gmail domain address and finally rendered in Outlook 2007.  What can you do to ensure that your mail has the highest rate of making it to its final destination regardless of the cyber hops in the middle?

1. Ask your recipient up front if their email address is still, indeed, the right one to be using. I check over 8 different email accounts on a normal day, and with inbox email aggregators with dynamic collection addresses (such as OtherInbox), I probably have several hundred email addresses (with OtherInBox I can use disposable email addresses) that will get to me somehow.  However, the email address to sign up with your service when I was a fresh college grad and using my Alumni account may no longer be at the top of my list.  So, I appreciate it when companies I do business with ask me if that's still the one I should have on my account.  If it is, I click through on a prompt when I login.  If not, it takes 2 seconds to change.  I don't get asked this every time I login, but perhaps, every 6 months or so to ensure the email address is fresh.  Guess what?  My Alumni account is forwarded to my Yahoo! account.  So, I changed it to have my Yahoo! account receive the email directly (and thus avoid any errant filtering on the part of my school).

2. Authenticate outbound email. Period.
DKIM was designed not to break when making multiple hops in an email's path to the final destination.  Unfortunately SPF will because of the technical nature of email headers, but with DKIM enabled mail, if it comes through at Gmail verified and then is forwarded on to AOL, the DKIM signature stays intact and the message has a higher likelihood of being delivered.

3. Here's the bad part.  Just like you as a sender pushing mail out to a recipient, when email is forwarded to another domain by the recipient domain, the reputation and deliverability of that mail falls back on the ISP doing the forwarding.  For instance, I run my own domain hosted through Gmail.  When you send an email there, it gets forwarded to Yahoo! which is what I consider my central email nervous system.  But, sometimes, email from Gmail gets bulked at Yahoo! because of Gmail's reputation.  This means I don't get my mail.  What can you do about it?  Gently remind your subscribers to check their spam folders for mail that may have accidentally fallen prey to a filter somewhere.  In my case, I'll get email that randomly gets bulked (as opposed to breaking any obvious best sending practices) and have made it a habit to check my spam folder often.

4. Check your content in multiple web clients. Oftentimes, an email sent to a Comcast domain looks fantastic, but when forwarded to an AOL accounts, looks horrible.  Now, like in #3, a lot of this is out of your control if the actual content is changed en route by the ISP.  But, if you ensure that your content looks good in the different clients, you increase your chances that when an ISP doesn't reach in and play with the HTML when it's being forwarded along, it will look fine in the end email inbox.

5. Have unique identifiers in your unsubscribe links tying an email address back to a particular sender.  If I unsubscribe from my Yahoo! address on an email that was sent to me originally at a Gmail account but was forwarded on, you could end up shooting yourself in the proverbial foot.  I could have any wanted email to my Yahoo! account stop but the Gmail email continue.  Recipients will oftentimes setup multiple email addresses for one account, or across multiple accounts you as an ESP or single sender support, so directly tying that recipient's unsubscribed email address to their preferences (and not the one that happened to actually do the unsubscribing) is key.

This is pretty technical stuff, folks.  But, in order to stay on top of the original intent of email being free flowing and having as few barriers as possible, you must be cognizant of the challenges in your path.  Reach out to your technical team to ensure you've got these points covered.  And remember, an email address is easily disposable.  We, as marketers, tend to see them as having high stickiness.  But, recipients can come and go with fluidity and tracking them along the way with their permission (ultimately their keeping you informed of their moves) keeps you in touch with your customers.

Chris Wheeler
Director of Deliverability
Bronto Software


Seven Digital Marketing Techniques to Grow Your Email List

Though growing your email database takes time and effort, when done correctly, it will house your most qualified and responsive leads. A well structured email database will enable you to boost sales with more targeted messages and offers, extend the lifecycle of any campaign and increase customer retention with regular and relevant communications.

Consider the following techniques to acquire new leads and grow your email list with success:

1. Who is your ideal lead and how do you reach them? Create a profile for your best customer(s). This should include things such as age, gender, hobbies, job function, how they shop (online or at stores), where they shop, what they read, what websites they visit, etc. Depending on the product or service you are marketing, some of the above will be more relevant than others. For example, if you are marketing a clothing line, job function will be less relevant than where and how they shop, where as if you are marketing a trade publication, job function and industry will be extremely important.

2. Analyze your competition. Take some time to find out what your competitors are doing to build their email lists. Start off by going to their websites. Then do a web search on your competition as well as relevant key words, and take note of any banners / CPC ads that appear. Be sure to click through to check out what their landing pages look like and what type of information they are choosing to capture. If they have an e-newsletter, sign up for it. This is an easy way to start receiving their email campaigns. All of these steps will help you find out what type of promotions they are running, any marketing alliances they have formed, and how they are positioning their product or service.

3. Reach your best customer. Once you've created your customer profile(s) and finished your competitive analysis, you are ready to develop your list growth strategy. Your strategy can include initiatives such as: banner ads on websites that your target audience visits, a PPC campaign, direct mail or email campaigns to magazine subscriber opt-in lists, etc. You can also approach other products or service providers for co-promotions or mutually beneficial partnerships. Starting an e-newsletter or a blog for your company are great ways to grow your list as long as your content is desirable. The lifecycle of any campaign can be extended with behavior-based trigger emails.

4. Your offer is everything! Unless your offer is relevant to the recipient, they will not respond to your campaign. Your offer will need to prompt the recipient to make a purchase or willingly give you their information in exchange for something they want. For instance, you might send an email introducing your company to a magazine subscriber opt-in list that you know your target audience reads. By including a free downloadable premium such as an industry salary guide, a list of the hottest bars in town, or a best practices whitepaper – what ever might be most relevant to your target audience – recipients will need to provide their email address and demographic information in order to download the premium. Once you've captured their information and they've opted-in to your database, you will be able to communicate with that lead on an ongoing basis.

5. Your offer is almost everything! Unless the recipients receive your email, they cannot receive your offer. Therefore, be sure to comply with email marketing best practices: include a physical mailing address, an opt-out link and a subject line that reflects the content in your email. Also, when writing your email, try to stay away from words that are flagged by spam filters.

6. Create a landing page. It is extremely important to guide the campaign recipient through the entire process. By creating a landing page on your website that mirrors your campaign's message / offer, you will encourage the recipient to fill out the form with the ultimate goal of opting-in to your list.

7. Use a lead capture form. Your landing page can either link to a lead capture form or you can embed the form in the landing page itself.
a. Since people are more prone to filling out a short form than a long and drawn out questionnaire, limit the amount of information you are asking them to provide in exchange for their premium. Besides the basic name and email address, think of including one or two other demographic questions. These questions should be well thought out to provide you with information you can leverage for future email campaigns.
b. In addition to the demographic questions, your form should include a check box giving people the option to opt-in to your mailing list and receive information about your company and future promotions. According to the CAN-SPAM Act, if people do not explicitly say that they would like to receive emails from you in the future, it is unlawful to send them commercial marketing emails.
c. If you do not currently have a way to capture leads, an easy way to do this is through your email service provider. Most ESPs will provide you with both the lead capture form and a database to house the acquired leads. They will also manage your opt-outs for you.

8. Track your efforts. If you track your list building efforts, you will be able to pinpoint which initiatives are working the best and focus more of your energy on those. You might decide that others aren't worth your time. Easy ways to track your initiatives are:
a. Web Analytics: sign up for a free Google Analytics account. This will enable you to track how many people are visiting each page on your site and which campaign they are coming from.
b. In your lead capture form, include one question asking people how they heard about you with a drop down menu where customers can select from a list of your current list building initiatives.
c. Landing Pages: create a separate landing page for each marketing initiative so you can track page visits to these dedicated pages through your web analytics account.
d. Dedicated 800 numbers: there are services that will provide you with a range of 800 numbers that redirect to your main phone number. Including a dedicated 800 number on each landing page will enable you to associate each call with a specific campaign.

Remember, even if you are accurately targeting your best customer, your campaign will only be a success if you get them to act on your offer and opt-in to your database. Be sure to spend enough time tailoring your message and the offer to the people who will be receiving your campaign.

- Yael K. Penn, Founder and Principal, Imagine 360 Marketing


Overheard: Marketers Still Struggle With CAN-SPAM Compliance With 3rd Party List Rental

During the eec List Growth & Engagement Roundtable meeting this week, several DMA/eec members had a fascinating conversation about how to define consumer intent under CAN-SPAM as it relates to opt out for third party messages. The rules amended to CAN-SPAM which went into effect in July of 2008 say that there only needs to be one opt-out per message, and provides some guidance on the definition of the "sender" and "primary sender."

"Listen" in with me….

Arend Henderson of Q Interactive, an online consumer site that has a very large email list rental business: It's about the permission grant. If the message is from PublisherA, and the Friendly from is the publisher, along with the message header and footer – and significantly, the permission grant is with the publisher; but then the full message promotes AdvertiserB, then the opt out under CAN-SPAM should be from the sender and list owner, who is PublisherA.

Stephanie Miller (me) of Return Path, an email deliverability and performance company: The panel of privacy experts who spoke at the recent eec/DMA webinar with the FTC interpret the legislation that the opt out should be provided by the advertiser.

Arend: We interpret this as a protection of the consumer interest. We, the publisher, own the list, we own the relationship, and we care about those relationships. We believe that the opt out should be from the publisher, not the advertiser. It's our job to send subscribers messages.

Kim Santos, Reader's Digest: I feel the opposite. The opt-out has to be on the side of the advertiser. In list rental, where the advertiser is the sole focus of the message, that is what drives the unsubscribe request. If I'm a consumer, then I don't want the AdvertiserB advertisement. The subscriber wants out of the AdvertiserB messages. If the opt out is only with PublisherA, then AdvertiserB could just go rent another list from another publisher. It's a penalty for those subscribers who are on a lot of lists.

Arend: We feel strongly that the message is not from AdvertiserB. The permission grant is with us, the publisher.

Luke Glasner of Rodman Publishing: If you want to opt-out from AdvertiserB, you should be able to opt-out of those specific messages of the advertiser from PublisherA. The publisher like Rodman provides the opt out and we offer to manage the suppression file for advertisers who rent from us multiple times. Also for first time users we request suppression files - and we don't charge extra for them. Personally, I don't think list renters should charge to run a suppression file - since the person that benefits the most from reducing spam complaints is the list owner, even more so than the consumer of that email. It's not about protecting consumers from AdvertiserB in other areas of the Internet. If I walk around and see an AdvertiserB billboard, does that violate the opt-out? Does my email opt-out mean that I won't ever see an ad on the street or on TV or on a website?

Kim: No of course not, but there is so much transparency in email than in other channels. You can't suppress ads in those other channels, but in email you can. I as a publisher and someone who cares about my subscribers have a responsibility to protect my consumer. So I make sure that if you don't want to see AdvertiserB ads, you won't see them from me, ever.

Luke: I can only be responsible for my email program, not actions of every person that engages in online advertising. I do feel we have a duty to respect our readers and to give them control over their inbox. It is up the subscriber to tell me how much they want to engage with me. And it is up to me to respect their wishes. I think that email is privilege granted to senders by their subscribes not a right. Based on my experience I think that most consumers would agree with that.

Kim: What about when there are two opt-outs? One each for the advertiser and for the publisher? We often see that, and sometimes offer it.

Arend: Consumers don't think in our terms, they don't know why there are two opt-outs. They don't know who is "sender" under the law. This is why we never let the advertiser put AdvertiserB in the friendly from line. The messages come from Q Interactive, which is the brand you know and gave a permission grant to.

Luke: I will tell you what consumers do when they see two unsubscribe links. They go to the top of the message and click the Report Spam button. They won't bother to figure it out. It's not worth it to us as a list owner to work with advertisers who drive a lot of unsubscribe requests or complaints (when someone clicks the Report Spam button).

Arend: We agree. We do not work with those kinds of advertisers at all or at least for very long.

Luke: And the other side is true as well. Sometimes, the person who is sending this message and the sales person at the list owner have different agendas. If you are a buyer, be sure that the list owner can actually do what they promise.

Kim: We view this as a partnership. We want our advertisers to succeed. We had to put in an actual, official corporate marketing role so that we have an ombudsman around this area. That has helped to eliminate confusion.

Stephanie: How do you handle newsletters with multiple ads?

Kim: We treat these differently than full page email broadcasts. In this case, the opt-out is with Reader's Digest, the sender.

Arend: We do the same thing.

Luke: We also follow the same for our newsletters. An email newsletter's purpose is to provide (hopefully) engaging content to the reader. We support the newsletter financially by selling ad space so we can continue to provide our readers with newsletters.

- Stephanie Miller, Return Path


FTC Seems Satisfied with Self Regulation...For Now

In last week's eec/DMA webinar, Peder Magee, Esq., FTC Privacy and Theft attorney for the Bureau of Consumer Protection joined DMA's VP of Government Affairs, Jerry Cerasale, and a panel of email privacy experts to discuss the latest thinking at the agency.

For now, that stance seems to suggest that the self regulation of the industry is working. Magee noted that some concepts "transcend the medium" when it comes to self regulation. "Transparency, prominent notice, use of personal data, and providing the ability to opt out easily" all are areas the FTC continues to watch.

Certification and feedback loop programs were noted by panelist Tom Bartel, CPO of Return Path, as an example of how the industry cooperates in order to make self regulation work. Especially for certification programs, "Email marketers put themselves forward voluntarily to be held to high standards," Bartel says. "Including the things Peder listed about prominence. Once they are vouched for by the third party, the ISPs can make good decisions about what to do with email from those senders.

"Participation in these programs shows marketers are willing to go way past the law, and well past best practices," Bartel states.

The FTC remains aggressive about prosecuting offenders under CAN-SPAM. Magee says, "CAN-SPAM and some of the filtering technologies have reduced the spam that consumers were getting a lot more of." He notes that the agency also brings cases against phishing scams, often initiated through email. Webinar moderator and DMA VP of Government Affairs Jerry Cerasale noted, "The FTC is the most active regulatory body in this area. Opt-in laws in Europe have not resulted in as many cases as the FTC."

Download the recording (free until this Thursday) and read the summary of the event.


Study: Unsubscribe Process Is an Afterthought

More heartbreaking news from a study that drills into a critical aspect of email marketing: the unsubscribe process. Apparently, some very smart marketers are not giving the unsubscribe the attention it needs as a valid part of their customers' holistic email brand experience.

Return Path's new study Keeping the Subscriber Experience Positive After "Unsubscribe Me" found that marketers may be considering the unsubscribe process as more of an afterthought vs. giving it the attention that it deserves (and that is required by law).

We found that 20% of top brand marketers sent additional emails to subscribers after confirming an unsubscribe request, and 11% of the companies studied emailed subscribers more than 10 days after confirming an unsubscribe request—a violation of the federal CAN-SPAM Act.

But here's one stat that definitely caught my attention—only 2 of the 45 companies we studied offered subscribers the option to change the frequency of their emails. We've discussed over and over again the risk that consumers are too inundated with email and just tune out. If a customer or potential customer is interested in your products but they'd rather hear from you once a month vs. once a week, by all means please give them that option and keep them on your list.

—Stephanie Miller of Return Path


Help Us Spread the Word about the eec Speakers Bureau

Please help us get the word out about the eec Speakers Bureau by including the following item in your next client newsletter or on your blog:

Email Marketing Experts Available to Speak at Your Next Event

Do you belong to an organization or group whose members could benefit from learning more about email marketing? Then please tell them that the Direct Marketing Association's Email Experience Council wants to help. The eec's Speakers Bureau has experts available across the U.S. and Canada who have committed themselves to helping email marketers maximize their return on investment and avoid pitfalls such as CAN-SPAM violations and being blacklisted. These industry veterans have waived all speakers' fees and can talk on a wide variety of topics, including…

● How Email Compliments Other Channels
● Obeying CAN-SPAM and Other Laws
● Getting and Maintaining Permission
● Ensuring Your Emails Are Delivered
● Growing a Large and Active List
● What to Send to Your Subscribers

To learn more and to request a speaker, please visit the eec's Speakers Bureau.

*Help us spread the word about this initiative by re-running this item in your client newsletter or on your blog. Thank you.


Your Most Frequently Asked Questions - Answered!

From the eec's Member RoundtablesAre the basics of email marketing leaving you stumped? Don't know where to turn with your most pressing email marketing questions? The wait is now over! The Email Experience Council's Member Initiatives Advisory Committee has established a comprehensive list of Email Marketing Q&A's that will assist even the most seasoned email marketing veteran in answering some of the industry's most pressing questions.

Questions range on topics such as permission, deliverability, list rental, Can-Spam requirements, and engaging consumers. From questions such as "Can you give me a list of spammy words to avoid?" to "Do I need to get permission in order to send emails to customers?" there is something interesting for everyone.

Personally, my favorite QA is "Everyone on my list has opted in so why am I getting spam complaints?" The accompanying answer is a solid response to a question asked by many in the email world, but this issue will more than likely forever remain as one that we email marketers will continue to ask, study, and try to solve for ages to come.

By no means are the contributors to the Q&A lawyers or legal advisors but most have been in the trenches of email marketing for long enough to know the answers to the questions everyone wants to know but are too afraid to ask. In addition, many of the answers are accompanied by other valuable resources to further enhance your knowledge on particular subjects.

Not seeing your most burning questions on the list? Send them to us! We'll be continuing to post Q&A's periodically so email us your questions and check back later for the answers.

—eec Members Initiatives Advisory Committee chair Lauren Skena of Epsilon


Seminar on Email Compliance on Nov. 3 in New York

This 4-hour seminar in New York is part of a ground-breaking series of email compliance-focused events. This specific seminar will cover the LashBack and UnsubCentral processes and deliverables within a framework of educating participants as to the need for comprehensive compliance process as a foundation to successful email marketing and email reputation protection.

Participants will learn the 10 Guidelines of CAN-SPAM compliance, with drill down on unsubscribe compliance, unsubscribe processes including suppression list best practices, the new FTC unsubscribe rule and compliance's overall impact on reputation and deliverability.

Email Compliance: The Foundation of Reputation and Deliverability
Produced by the Email Experience Council and the Direct Marketing Association
Monday, Nov. 3 at 1pm
eec/DMA Seminar Center, New York

John Engler, Vice President and General Manager, UnsubCentral
Bennet Kelley, Esq., Founder, The Internet Law Center
James O'Brien, Director of Marketing, LashBack

This seminar is $99, but eec members can get $20 off using the discount code "eecM."

>>Register Now for this seminar!


Two-Click Survey Results: Are you in compliance with the new CAN-SPAM rules that went into effect in July?

The answer…
45% –> Yes, because the new rules didn't require any changes.
34% –> Yes. We've made the necessary changes.
2% –> No, but we're evaluating what changes are needed.
19% –> No. We weren't aware that new CAN-SPAM rules were issued.

Thanks to everyone who participated in this unscientific survey.

Are you surprised by the results? Share your comments below.

Also, visit the eec homepage to answer the latest Two-Click Survey question:
How long is too long to go between sending emails to a subscriber?

–>See more Two-Click Survey Results.